KAjS^SAS contested election. 






SPEECH OF HON. E^^ASHBURN, JRn 

4 . • ** , ' 

' OF MAINE, 

, * IN , THE HOUSE OF REPRESENTATIYES, ; 

March 14 , 1856 , ' 

Oil the Resplution reported hij the Committee of Elections, in the 
Contested Election Case from the Territory of Kansas. 


Mr. WASHBURN, of Maine, said: 

Mr. Speaker ; In the remarks which I shall 
submit at this time, it will be my purpose to speak 
directly, though in no formal phrase, to the points 
fairly raised by the resolution before the House. 

The first question in order is : Whether, conce¬ 
ding that the House has power to inquire and decide, 
in this election case, upon the regularity and validity 
of what is claimed to have been the first Legislature 
in Kansas, the charges of irregularity are sufficiently 
grave a?id responsible to justify an investigation ? 
That the charges are of a most serious character 
will not be denied ; and that they come before us 
in such form as to warrant a full examination, if 
we have the power to make it, should seem to be 
too clear for controversy. 

“Common fame,” says the Manual, “is a good 
ground for the House to proceed by inquiry, and 
even to accusation.” 

In the case of the Kansas elections, there have 
been and are wide-spread and generally-credited 
rumors of wrong — reports doming in various 
shapes and forms from that Territory—in letters 
from citizens residing there, in the statements of 
those who were themselves witnesses to the facts 
of which they speak—filling the columns of the 
newspapers, recognised by Executive messages 
and proclamations, by the action of State Legis¬ 
latures, by reports of committees, and discussions 
in both Houses of Congress. 

Besides, the people of Kansas, or a large por¬ 
tion of them, through their agent in this regard. 
Governor Reeder, present themselves before this 
House, and inform it— 

•‘Tliat immediately before tlie .00th day of March last, 
bf.iii^ the day fixed for the election of a Legislature for the 
Territory of liansas, large bodies of men, without preten¬ 
sions to residence in the Territory, came oyer from the 
neighboring counties of the State of Missouri, armed and 
organized into companies, with their proper leadms, and 
supplied with provisions, fodder, accommodations for 
camping, ammunition, and, in one case at least, with ar¬ 
tillery. That they marched into the Territory with ban 
ners and martial music, and encamped in parties in the 
' icinity of diiTerent election polls, shortly before the said 
election, for the purpose of preventing the people of the 
'Territory from electing members of the Ijegislatiye As¬ 
sembly, as provided by the act of Congress, of taking the 
|)ow(:i- i' to their own hands, and, by intimidation or vio¬ 
lence, taking possession of the pofis. and themselves going 
ilirou rn the t’orm of electing members of the r^egislature, 
'^ome of whom thus elected were no i-residei.ts of the 
I cnitory.” 

And, sir, who is Governor Reeder, by whom 


the people of Kansas have thus spokeu? A dis¬ 
tinguished citizen of the State of Pennsylvania, 
known and honored of her people, by whom he 
was warmly recommended as eminently worthy 
of the confidence of the President, he was by him 
appointed to the discharge of the arduous, del¬ 
icate, and most responsible duties of Governor 
of the Territory of Kansas—a post than which 
none in the gift of the Administration, under the 
peculiar circumstances of the organization of that 
Territory, required higher intellectual and moral 
qualities in the occupant. He was a Democrat, 
a friend of the Administration, and a believer— 
and here I think he was-greatly in error—in the 
principles asserted by the President and his North¬ 
ern friends to be contained in the Kansas-Ne- 
braska bill; and, sir, he was something more, 
and he has given the highest possible evidence 
of the fact, an honest man. As such he went to 
Kansas, wuth a sincere purpose, that, so far as it 
depended upon him, the principles of “ popular 
sovereignty,” as he understood them, and as they 
had been interpreted by the President and the 
Democratic party North, should be maintained. 
Faithful to his convictions, and relying upon the 
good faith and support of the Administration, he 
entered upon the discharge of his high functions, 
determined that the people of Kansas should rule 
Kansas; and for that purpose, executed, where 
occasion required, he was, by the same Adminis¬ 
tration from wdiich he received his commission, 
condemned and removed from office. The Ad¬ 
ministration which struck, but would not hear 
him, was the delegate of the Slave Power—the 
organ of a section—bound to its uses and behests. 
That power had compelled the President to deny 
that the principles of popular sovereignty were 
in the Kansas and Nebraska bills, and to assert 
that, under the Constitution, no Territory bad, or 
could have, the power to exclude Slavery. Gov¬ 
ernor Reeder could be removed, but he could not 
be false to his convictions ; the President might 
strike him down, but the power to extinguish his 
manhood had not been delegated by the South. 
If the Governor of Kansas could have consented 
to become the instrument of the President in his 
design to enslave that Territory for the propitia¬ 
tion of the South, who doubts that he could have 
held office to this day? And the fact that he 
could not, and preferred to encounter the frowns 













2 


of the Executive, and the annoyances of his min¬ 
ions in Kansas, and their ceaseless slanders eve¬ 
rywhere, rather than submit to dishonor, and felt 
that he must hold office, if at all, unbribed, un¬ 
bought—no man’s tool, and no man’s slave—is 
the best evidence of his integrity and probity 
that could have possibly been furnished. 

The gentleman from Georgia [Mr. Stephens] 
has denounced Governor Reeder with great vehe¬ 
mence, and declared that, if what he (Governor 
Reeder) now alleges, be true, he has acted most 
inconsistently and dishonorably, and fallen to the 
lowest depths of “ infamy and degradation;” as 
if, when called upon to act upon such records 
and facts as were legally before them, and when 
he was bound officially to decide upon the ques¬ 
tion as then presented, he might not honestly do 
what, at a later time and upon further proofs, 
should appear to have been erroneous. Would 
any gentleman like to be judged by the rule which 
is here invoked for the condemnation of Gov¬ 
ernor Reeder? Sir, I differ from the gentleman 
in my deductions from what he avers was the 
conduct of Governor Reeder. If what he says 
be true, and the Governor, upon full knowledge, 
and such as he could act upon, was brave and 
strong enough to do what then appeared right, 
even though at the expense of impeaching the 
correctness of his previous action, I say, all honor 
to him. And, sir, if what I have seen in the news¬ 
papers be true, this was the view which was taken 
of Governor Reeder, and of his official course, 
down to the latest moment, by the President and 
his official advisers. I do not know how it is, 
and I will not say that the report to which I am 
about to allude is correct. I have had no com¬ 
munication with Governor Reeder, or information 
from him or any of his friends, upon the subject; 
but I will say that I have seen it stated in the 
newspapers, that, after all these things charged 
against Governor Reeder had transpired, and were 
well known at Washington—after he had reached, 
as the gentleman from Georgia says, the lowest 
deeps of infamy and degradation, the President 
did that which implied the most unlimited con¬ 
fidence in and the highest respect for him. I 
have seen it stated that the President, at a time 
when he must have been in possession of all the 
facts upon which he defends the removal of Gov¬ 
ernor Reeder, in order to induce him to resign, 
offered him, directly or indirectly, in some such 
way, I presume, as Presidents are said to have 
for doing these things, a foreign appointment 
of the highest grade, and importing, as I have 
said, unabated confidence in his character—a mis¬ 
sion to China, I believe it was said, in the first 
place; and that not proving a sufficient induce¬ 
ment, the appointment of Minister to the Court of 
St. James. I repeat, I do not know how this 
thing is, but I have seen the statement which I 
have made, or one substantially like it, in the 
public journals, and have never seen a contradic¬ 
tion, although the “ Union'" has been challenged 
to contradict it. If true, Governor Reeder has 
been endorsed by the President to the fullest ex¬ 
tent, because it is not to be supposed that he 
would think for a moment of sending abroad, to 
fill one of the highest places in the gift of the Ex- I 


ecutive, an unworthy or dishonest man. Rut if 
he tendered such an appointment to a man known 
by him to be a scoundrel, then, I submit, he has 
himself fathomed depths of degradation a#id in¬ 
famy, not only such as the late Governor of Kan¬ 
sas never explored, but louver than plummet ever 
sounded. Gentlemen may take either' horn of 
the dilemma. 

Mr. SMITH, of Virginia. ^ I desire to know 
whether the gentleman wislies the House and 
country to understand that he makes the charge 
that the President offered Governor Reeder a for¬ 
eign appointment of the first grade, if lie would 
resign his position as Governor of Kansas ? 

Mr. HICKMAN. I will answer the gentleman 
from Virginia. 

Mr. SMITH. I want an answer from the gen¬ 
tleman from Maine. 

Mr. WASHBURN. I will answer the gentle¬ 
man. I have seen it so stated in the nevrspapers. 

Mr. SMITH. Ah! 

Mr. WASHBURN. A correspondent of the 
New York Tribune^ if I am not mistaken, has 
made the charge, and dared the Washington 
Union to deny it. I dare the gentleman from 
Virginia to deny it. 

Mr. SMITH. I know nothing of the subject; 
but I will say, that I do not believe a word of it. 
It is a bold and unmitigated falsehood, and unbe¬ 
coming any member upon this floor to give liere 
any credit to these newspaper statements. 

Mr. WASHBURN. And I do believe every 
word of it; and although the gentleman denoun¬ 
ces the report as false, he admits that he has 
no knowledge on the subject. If it is false, let 
the gentlemen wdio are authorized—and there are 
gentlemen here who can speak for the Executive— 
deny it, if they can. As to what is becoming or 
unbecoming for me to say, I am my own judge ; 
but this is the first time I have heard that it was 
unbecoming to refer to newspaper statements. 

But the minority of the committee have admit¬ 
ted that, if we have a right to decide in regard to 
the regularity and legality of the Kansas election 
in March last, there is good reason for the passage 
of this resolution. They say in their report: 

“If it is the judgment of the House that we sliould enter 
into such an investigation, and take jurisdiction of that 
question—makingourstlves the judges of the qualifications 
and election returns, not only of our own niemher-. L'ut 
also of the Territorial and t?tate J>egislatures, which fol¬ 
lows as a matter of course—then the conclusioji to Wliici; 
the majority oi the committ'^e have come is right.” 

Here, I think, this branch of the case may be 
safely rested. I Avill merely add, in this connec¬ 
tion, that the minority seem to misapprehend the 
purpose of the majority, which is not to judge of 
the “ qualifications and election returns ” of mem¬ 
bers of a Legislature, so much as to ascertain 
whether in point of fact there was a Legislature. 

The next question, Mr. Speaker, which I will 
consider, is this ; Granting the truth of the charges 
and allegations in the memorial of Governor Reeder, 
has the House authority to inquire into the fact 
u'hether there teas or not a Legislature in Kansas^ 
by which laivs were, or could be, enacted in refer¬ 
ence to elections in that Territory, binding iqton the 
people and upon this House ? That has been made 
the great question in this debate. The minority 





3 


of the committee deny that the House possesses 
this power. They deii}’’ it in their report, as "well 
as in the ])a[)er attached thereto, submitted by 
General Whitlied, and which they have substan¬ 
tially adopted as a part of their report. The mi¬ 
nority say, “ It will be assuming a jurisdiction 
which we do not believe properly belongs to us, 
and will be establishing for the first time in our 
history a principle and a precedent of most dan¬ 
gerous tendency;” but not half so dangerous, I 
would suggest, as would be established, if we, 

. by refusing to assume jurisdiction, should decide 
that fraud and violence in elections, where the 
rights of our own members are concerned, no 
matter how gross nor how well vouched, are 
matters into which we have no power to inquire. 

Before entering upon the consideration of this 
question, there is a point made by the minority, 
to which I wish to say a few words. It is this: 
that there are no parties before the House, on 
whose motion the inquiry proposed can be insti¬ 
tuted. They assert that neither Governor Reeder 
uor the people of Kansas are properly here; and 
that the House, upon its own motion, can only 
inquire as to the “qualifications” of members, 
and not as to the elections and returns. To this 
I reply, that, in the first place. Governor Reeder 
and, through him, the people of Kansas, are prop¬ 
erly before the House, and may well raise objec¬ 
tion to the claims of the sitting Delegate; and, 
secondly, that if it were otherwise, the House 
can, upon the motion of any member, make the 
investigation. The Constitution says, “ Each 
House shall be the judge of the elections, returns, 
and qualifications of its own members; ” and what 
it may do in one of the specifications, it may do 
in all. There is no restriction, and no reason for 
any. Mark, how careful and precise, how full' 
and comprehensive, is the language!—it seems to 
have been prepared to prevent all question and 
^ cavil. The House may judge of the qualifications ; 
that is, as to the age, residence, and citizenship, 
of the claimant. It may also judge of the returns — 
the certificate or other evidence which he pro¬ 
duces ; and it may go further, and beyond the 
returns, although they appear to be in form and 
correct, and look into the election itself, and see 
if that was all right—’if it was made at the proper 
time and places, and by the proper parties; and 
if not, may set it aside. It may look into every 
fact upon which the election depends—into the 
laws regulating the election; and, of course, may 
inquire whether there were any laws binding 
upon the House or upon the people whose rights 
are in controversy. Xow, all this is so plain that 
argument cannot help it. The memorialist de¬ 
nies that thetJe was a Legislature in Kansas. The 
minority insist that, whether this be true or not, 
the House cannot inquire. .The question is one 
of fact merely, and, like all questions of fact, must 
be settled by proof; and, from the nature of the 
case, the only evidence that can be had is that of 
witnesses to what has transpired. If the body 
of rpen wdio assumed to be a Legislature were 
not elected by the inhabitants of Kansas, but by 
the people of xMissouri, who went into Kansas 
merely fur die purpose of voting, and, having 
voted, returned home, it cannot be contended that 


they were the Legislature contemplated by the 
organic law of the Territory. This is a question 
of fact, and is susceptible of proof. Men Avho 
Avere upon the ground know Avhether the people 
of Kansas were driven from the polls or not, and 
whether the elections were managed and carried 
by non-residents. If here, they could inform the 
House of facts from which it would be able to 
decide Avhether the alleged Legislature Avas in 
truth what it claimed to be, or anything more 
than a convention, a caucus, or a mob. But, 
say the minority, we are not permitted to inquire 
into these things ; we have the laws of that Legis¬ 
lature, their book of statutes, and their Journal; 
we cannot go behind them—they are conclusive. 
Every Legislature, they say, has the power to 
judge of the elections of its members, and by its 
decisions Ave are bound. This, to a certain ex- 
tent, IS true, but there must be a Legislature to 
judge; and when, as in this case, the fact that 
there was a Legislature is controverted and put 
in issue, the issue must be tried, and the assump¬ 
tions and acts of such pretended Legislature can¬ 
not be received as final and conclusive evidence 
of its legal existence. If there were in fact no 
Legislature in Kansas, it is not easy to perceive 
how the acts of a body of men assuming to be 
such can make it a Legislature—can validate and 
make legal what is in itself null and void. Cer¬ 
tainly, it is a novel doctrine, that a convention or 
promiscuous assembly can, proprio vigore^ trans¬ 
form itself into a legal Legislature, and make its 
own records conclush'e evidence of its rightful 
and proper creation and existence. 

Suppose the people of Pennsylvania and Mary¬ 
land should, upon an election day in Delaware, 
pass over into that State in large numbers, and 
take possession of the polls, manage the elections, 
and themselves choose all the members for the 
State Legislature, and such members, afterwards 
assembling, should, in collusion AAuth the Goa'- 
ernor, act as a Legislature, pass laws regulating 
future elections, and then, under such laws, pay 
another visit to the State, and in similar manner 
vote for a member of Congress—Avould it be said 
that this House has no authority to inquire into 
the case, and that the doings ot these outsiders, 
in open violation of laAV, are sacred from investi¬ 
gation?—•that, under our general and unlimited 
power to judge of the elections of our OAvn mem¬ 
bers, Ave are to be stopped in our examination by 
the production of a certificate of election, or by 
the proceedings and records of a body of men 
Avhose title to be regarded as a Legislature is ex¬ 
posed to such impeachment?—or that such exam¬ 
ination might be arrested by a proclamation of 
the President, issued, it may be, upon the request 
of an unfaithful Governor, for the very purpose 
of giAung the President power to bring his own 
creatures into the House, Avhen he may need 
them to OA^ercome an adverse majority ? The 
statement of the case is argument, and is itself 
a sufficient refutation of the doctrines set up by 
the minority of the committee. 

The gentleman from Georgia relies upon prece¬ 
dents. He maintains that questions of member¬ 
ship are judicial questions, Avhich CA'ery Legisla¬ 
ture has an inherent right to decide: and he cites 



4 


I 


Coke, Blackstone, and other English authorities, 
as to the laws and customs of Parliament. Un¬ 
doubtedly what he has cited is good law; it has 
not been' disputed upon this side of the House; 
l)ut the gentleman’s misfortune is, that his prece¬ 
dents have no application to this case. lie may 
pile up such authorities as he has invoked—and 
that he could find no better, proves the sterility 
of his case—high as Olympus, and they will not 
help him, for they will not touch the question 
above or beneath. His authorities bear upon the 
power of a Legislature whose existence is admit¬ 
ted, but have no* tendency to convince us that a 
body of usurpers may, by their own proceedings, 
resolve themselves into a Legislature whose right 
may not be questioned or impeached. He says, 
if asked what- is to be done when a question of 
usurpation arises, he would answer, that the body 
which comes in in pursuance of law is to be re¬ 
garded as the legal Legislature. Very well; but 
here may be a grave question of fact, and, to ar¬ 
rive at a just decision, the fact must be ascertain¬ 
ed, to wit: whether the body does “ come in in 
pursuance of law.” Suppose two bodies claim 
at the same time “ to come in in pursuance of 
law,” and a question arises as to these claims, 
how does the gentleman propose to decide it? 
By records, and journals, and seals? Both have 
all these, and they are apparently as formal and 
regular in one case as the other. Apply the gen¬ 
tleman’s doctrine to the Kansas case. He asserts 
that the Legislature, under whose laws General 
Whitfield claims a right to be here, came in in 
pursuance of law, and I deny it. Now arises the 
question. What is the truth of the matter ? For 
that body to come in under the organic law as a 
Legislature, certain things were necessary. It 
was necessary that a time and that places for the 
election should be api^ointed by the Governor, 
and that the members should be chosen by cer¬ 
tain perso?is specified in the law. These were 
conditions, the non-compliance with which would 
be fatal; and nobody elected outside of them 
could be said to come in in pursuance of the act 
of Congress. The gentleman will not contend, 
that if the election had been held on a different 
day or at different places from those fixed by the 
Executive, it would be legal. I would ask if these 
things of time and place—things of form main¬ 
ly—be so essential and indispensable, how it can 
be held that the matters of substance, those which 
have regard to the persons whose right it was to 
elect, are unimportant or non-essential? If this 
Kansas Legislature (so called) were not elected 
at the time and places appointed, and by the per- 
.sons appointed, it did not come in in pursuance of 
law, and is no Legislature. 

And let me say further, in reply to the gentle¬ 
man, that whatever inherent rights State Legis- 
1*’tures have to decide upon the election of raem- 
l)ers, the first Legislature of Kansas had no such 
right. All its powers in this respect were derived 
from the General Government, and were such, 
and such only; as were granted by the Kansas- 
Nebraska bill. 

» The gentleman from Maryland, [Mr. Davis,] 
in his very able and ingenious speech, has shiv¬ 
ered and scattered most effectually the arguments 


and defences of those who preceded him in op¬ 
position to the resolution reported by the com¬ 
mittee. He acknowledged frankly that they had 
not met the real question in the case. When in 
a State there is a controversy as to the proper and 
regular Government, and there are two organiza¬ 
tions claiming to be regular, there must ©f neces¬ 
sity be a power somewhere, outside of those or¬ 
ganizations, to determine which is rightful and 
legal. This he concedes; and I submit that the 
power exists whenever a real and dispute 

arises as to the proper existence of a Government 
or a Legislature, whether there be a concurrent 
and opposing Government or Legislature, or not. 
Whenever the question is raised upon proper oc¬ 
casion, it must be decided. 

But, while the gentleman from Maryland has 
been so successful in his assaults upon the posi¬ 
tions .of others, it appears to me that he has 
planted himself upon grounds even more inde¬ 
fensible than they have occupied. The power to 
decide these questions resides somewhere. The 
President of the United States, he says, under the 
act of 1795, has authority to call out the militia 
to suppress insurrections, and in doing this must 
necessarily determine which is the Government or 
party to be sustained, and which to be put down ; 
and this decision does not cease to operate with 
the occasion which called it out, but reaches 
beyond it, and extends to all cases and over all 
tribunals. The courts, he adds, follow the polit¬ 
ical power; and this power, so far as questions of 
this kind are concerned, is in the President. 
Now, it is undoubtedly true that the rule of the 
Supreme Court is to follow the political power in 
its decisions upon political questions ; the judicial 
power recognises the Government which the po¬ 
litical power recognises. Where, from the nature 
of the case, as when there is an insurrection in 
a State, the President must decide whether a Gov¬ 
ernment is to be recognised, that decision is the 
political power, and the courts will follow it in ail 
things to which it refers and upon which it bears; 
and a citizen indicted for an assault committed 
by order of the Government which is recognised 
by the President, will be shielded bj" the Presi¬ 
dent’s recognition of that Government. Where, 
from the nature of the case, the Senate is to de¬ 
cide, as when a question arises upon the elections 
and qualifications of its members, its decision, 
under the Constitution, is the political power 
which the court will follow in all things touching 
and growing out of such decision; and so of the 
House of Pjepresentatives: when it decides that 
one is entitled to a seat as a member, the court 
will protect him in all the rights and privileges 
of a member. 

This question has been settled so distinctly 
and upon reasons so cogent, by the Supreme 
Court, in an opinion pronounced by Chief Jus¬ 
tice Taney, in the case of Luther vs. Borden et al., 
a case growing out of the Dorr disturbances in 
Rhode Island, that I am unable to see how there 
can be room for any doubt upon the subject. 
Chief Justice Taney says : 

“U)vter lliis (Uie4th) article of the Co!i.s1.iti.itioM. ii rests 
vvitii Cougre.ss to decide lial (iovcruDU'ul i.= tJi': t-^lab- 
lislied one iiiu-iSlate; 'or. JUMiie United ^tsates ;.-.uara;i’\ 



5 


to eacli Stale a^repiibiican Goven.ment, Coiiire.ss imisi 
necessarily f\ecide wliat (iovernnienl is establisli^d in tlie 
SiiUe, lieforc it can detennine wliether it is republican or 
not. And u'ben the Senators and Representatives of a 
Slate are admitted into the councils of th“ Uii'on, the au- 
\ iliority oftlie (joveniincnt under which they are appointed, 
as well as its repuhlican character, is recognised by the 
proper constitutional authority. And i's decision is bind- 
ins on, every other department of the Government,'and 
could not be (piestioned in a judicial tribunal. It is true 
that the co' test in thi^ case did net last long enough to 
bring the matter to this issue; and, as no Senators or Rep¬ 
resentatives were elected under the authority of the Gov- 
t'rnment of which Mr Dorr was the head, Congress was 
not called upbn to decide the controversy ; yet the right to 
decide is placed there, and not in the courts.” 

JS'o\y, I submit, this covers the whole ground, 
and, if a decision of our highest court is to be re¬ 
ceived as authority, settles the question against 
the gentleman from Maryland. 

The gentleman from Maryland, disagreeing 
with the gentleman from Georgia, maintains that, 
in deciding upon the election of members, the 
House acts as a political body, and not as a court. 
If, then,'we are acting in a political or legislative 
capacity, and the decision to which we may come 
will be that by which the courts of the land are 
bound, and the power to make such decision 
involves, as the Rhode Island case states, the 
power to look into State Governments to ascertain 
whether they are ijegular and legal, then the ques¬ 
tion is closed, and the propriety of sending for per¬ 
sons and papers, even upon the grounds of the 
minority, is vindicated; and if, on the other hand, 
the gentleman from Georgia is right, and we are 
sitting here as a court, and can inquire into the 
proceedings of State or Territorial Legislatures 
only where a court can, we are equally sustained 
by the authority to which I have referred. Upon 
this point the court says : 

'I’he point, then, raised here has alreafy been decided 
by ilie courts of R .ode Island. Tlie que.stioii relates alto¬ 
gether to the Con.stituiion and laws of that State, and the 
well .settled rule intliis court is, that the courts of the United 
Stales adopt and follow the decisions of the State courts in 
questions which concern merely the Constitution and laws 
oi a State. 

Upon what ground could the circuit court of the United 
States which tried this case have departed from this rule, 
and disregarded and overruled the decisions of the. court 
• if Rhode island? Undoubtedly the courts of the United 
State.s have certain powers under the Constitution and 
laws of the United States which do not belong to State 
courts. Rat the j)Ovver of determining that a State Gov- 
<;riime;it has been lawfully esta' 1 slied, which the courts 
of the State disown and repudiate, is not one of them. 
Upon such a que.stion, the courts of the United States are 
bound to follow the decisions of tbe State tribunals, and 
must therefore regard the charter Government as the law¬ 
ful and established Government during the time of this 
I'OMtcSt.” 

So that it appears, by a decision of the highest 
judicial tribunal in the land, that whether the 
House acts,in judging of the elections, returns, and 
qualifications of its members, in a political or judi¬ 
cial capacity,, it has the power, and, I may add, 
it is its duty, when the inquiry becomes important, 
to ascertain and decide as to the regularity and 
legal existence of State—and of course of Ter¬ 
ritorial—Governments and Legislatures. And 
such inquiry, I maintain, does become important 
when a material question in issue is, whether 
there were at a certain time laws in force in a 
State or Territory prescribing the way and man¬ 
ner of holding elections, as required by the or¬ 
ganic law thereof. And this will depend upon 


another and previous question : whether there 
was in existence a legislative body competent to 
pass such laws. 

AYhy, sir, the power to decide upon the title of 
men, and bodies of men, as Legislatures, to the 
offices and functions which they cl.aim, is recog¬ 
nised in a thousand cases in the books, where, 
upon quo xcarranto^ such titles have been ex¬ 
amined and passed upon. 

There is a question of this kind being heard 
to-day before the Supreme Court of the State of 
AVisconsin. Mr. Barstow claims to have been 
chosen Governor of that State at the late elec¬ 
tion, and has been so declared by the board of 
State canvassers. Mr. Bashford, the opposing 
candidate, impeaches the decision of the can¬ 
vassers, and alleges that the returns upon which 
it was made were forgeries, or procured falsely 
and fraudulently; and that he, in fact, had a 
majority of the legal votes, and was therefore 
duly elected. The Supreme Court, upon argu¬ 
ment, has taken jurisdiction of the question, and 
decided that it has power to go behind the ac¬ 
tion of the canvassers, and declare which of the 
claimants was duly elected. 

The result is, that where the political power of 
the United States has recognised a State Govern¬ 
ment, the Supreme Court will adopt that recog¬ 
nition, so far as it legitimately extends; and 
where there has been no decision by the political 
power, or in cases outside of the scope of a de¬ 
cision, if there have been one, it will adopt the 
law declared by the highest State court. 

Mr. Speaker, I cannot pass from this branch 
of inquiry without remarking again upon the ex¬ 
tent of the power claimed by the gentleman from 
Maryland for the President. If the gentleman is 
right in his conclusions, there is but one power 
in the land—that of the Executive; there is no 
House and no Senate; the President is judge of 
their elections, and is the master of the States ; 
he may raise up and he may put down at will; 
he may prepare his own opportunities, and, avail¬ 
ing himself of the results of his own machina¬ 
tions, declare the law for the States, the courts, 
and the people. The true and constitutional lim¬ 
itation is this: the President, from necessity, 
must judge and decide for himself when the exi¬ 
gency arises upon which he is to act. AA^hen in 
a State there is an insurrection or domestic vio¬ 
lence, the President may, upon proper reejuest, in¬ 
terfere to restore order and prevent bloodshed. 
He must act upon the instant; and, by his proc¬ 
lamation, recognise the authority which he holds 
to be regular; and this recognition is the law of 
that case, and goes no further, and can go no 
further -without breaking down the powers of the 
co-ordinate branches of the Government. He 
has no more right, by his decision, to control the 
constitutional functions of the Senate and the 
House of Representatives, than they, or either of 
them, have to control his. Each must decide for 
its own exigency; and each, in its own sphere, 
is independent of the othgr. AYhy, sir, after the 
President has recognised a State Government as 
the authorized and regular Government, and has 
succeeded in his duty of quelling the disturbances 
there, the people of the State may peaceably 


« 



6 


recognise the antagonist Government, submit to 
it, choose Senators and Representatives under it, 
and they, coming here, may be admitted by the 
Senate and the House; and thus the Government 
which they represent will be acknowledged to be 
the true and rightful Government by Congress, 
and such acknowledgment will be the political 
decision which the Supreme Court declares it is 
bound to follow. 

What has been said in this debate in respect 
to Governments de facto is applicable to foreign 
rather than to our State Governments, and has 
no bearing upon our Territorial Governments. 
A Territorial Legislature, in so far as the power 
is granted by its organic law to make laws or 
rules for the election of a Delegate to Congress, 
is the agent of the General Government or of the 
House ; and the House has a right to know that 
the particular agent provided for making these 
laws has acted therein. In the debate upon the 
contested-election case from Illinois, recently be¬ 
fore the Senate, Judge Butler, from South Car¬ 
olina, said: 

“Members of a State Legislature occupy a double rela¬ 
tion. I'bey become, in some respects, constituents of the 
Federal Government, so 'ar as their agency may be em¬ 
ployed ill electing Senators to the Congress of the United 
States under the Federal Constitution.” 

And, again : 

“ The member of a State Legislature occupiesthe double 
relaticn of being the representative of his own co. stitu 
ents, so far as their home interests are concerned, and 
also of being one of the agents contemplatecl by the Con¬ 
stitution of the United States to make a Senator of the 
United States.” 

Apply these principles to the case before us, 
and we must regard the Legislature of Kansas as 
our agent for the purpose of making laws for the 
election of a Delegate. Those laws can be made 
only by the agent which we authorized, and not 
by another. Delegates are allowed to Territories 
by the grace and favor of Congress. Unlike States, 
they have no constitutional right to be repre¬ 
sented in these Halls. Congress may receive or 
refuse them at its pleasure. It may repeal all 
laws upon the subject at any time. When it ex¬ 
tends this favor, it may couple it with conditions. 
It may impose the condition that laws shall be 
made for the holding of the elections by a Leg¬ 
islature, to be chosen, in respect to time, place, 
and suffrage, as it shall prescribe; and when a 
Delegate comes here, the House may well inquire 
whether all these conditions have been kept; and 
if not, it may clearly and unquestionably reject 
him. 

Something more than twenty years ago, a case 
similar to this, in principle, was before the Senate. 
Under the old charter Government of Rhode Isl¬ 
and, there was a failure to elect one of the Houses 
of the Legislature, and, by a law which it was 
insisted, on one side, that body had no power to 
make, the old Legislature was continued until 
another should be elected. By the Legislature 
thus holding over, Mr. Robbins Avas chosen United 
States Senator. A new Legislature was elected 
the year after, by whic^ the election of Mr. Rob¬ 
bins was declared null and void. It then pro¬ 
ceeded to an election for Senator, and made 
choice of Mr. Potter. Both gentlemen appeared 
before the Senate, and claimed the seat. The 


question was very thoroughly discussed; and it 
turned upon the question of fact, whether, under 
the charter and by the Iravs of Rhode Island, the 
Legislature held over. The Senate decided that 
it did, and admitted IMr. Robbins. The majority 
of the committee to Avhom the subject was refer¬ 
red; Avhile incidentally recognising some of the 
doctrines maintained by the minority of the com¬ 
mittee in this case, acted upon those of the ma¬ 
jority. They say: 

“To constitute, a Legislature capable of enneting laws 
or performing any other duty confided to that body by the 
Con.«titution of the ?^tate or of th " United States, it is e,*-- 
sential that thee .sliould be in existence, at the same 
lime, a Governor, or some officer authoriz d to perform 
the executive functiojis; a S'^nute, and House of Repre 
sentatives. In the absence of eitlier. the other branches 
could not perform any act which would be obligatory o i 
the people of the Stale. IVe are then brought to the inquiry. 
Whether these component parts of the Legislature of 
Rhode Island were assembled at Providence in January. 

when Mr Robbins was elected, in grand committee 
a Senator to Congress? ” 

Again: 

“ It remains, then, to be inquired, Was this body, so as 
sembled, the Legislature of Rhode Island? The law, by 
virtue of which they continued to exercise the powers of 
legislation, is said to be repugnant to the charter, and 
therefore void. If this be a sound objection, it at once 
annuls every part of the proceedings,, and, as a necessary 
consequence, that of choosing a Senator in Congress.’ 

The minority of the committee in the Rhode 
Island case, consisting of Mr. Wright, of New 
York, and Mr. Rives, of Virginia,'held not only 
that the Senate had power to inquire AA’hether the 
body which elected Mr. Robbins was the Legis¬ 
lature of Rhode Island, but also that, upon in¬ 
vestigation, it appeared that this body was not 
the Legislature of that State, and therefore that 
Mr. Potter jvas duly elected. Mr. Rives resigned 
his seat in the Senate before the report of the 
minority—in the conclusions of Avhich, it was 
said, he concurred—Avas presented. Mr. Vfright 
drew the report, and it is marked by that clear¬ 
ness and force for which that great man Avas so 
justly distinguished. He says: 

“ But however this may be. he cannot but consider it u 
plain proposition, and not requiring argument to support 
it, that when the constitutional organization of a body oi 
men, claiming to be the Legislature of a Stale, is du ciues 
lion in is.?u *, the acts of that body wliose ronstiiutional 
powers are di.sputed, are not to be adduced as evidence 
of the constitntional pow-er of the body to perform the”" 
When the constitutionality of a legislative act is ques¬ 
tioned, he cannot believe that the act il.'seif i.s to be relied 
upon as evidence of its own validity. Kquaily cleu- i.s it 
to his mind, that, when sach a question is to be d-.o r- 
mined, the conseiiuences of pronouncing the act to be im 
valid are not con.sideraiion.s which slioubi legitimate y 
control the decision. The act i.s eiihcr cou.stitui.on i! or 
unconsuiutioiial. If constitaiional, the dispute l^ .-.etiied ; 
it unconstitutional, no con.seijuences to follow from a pro¬ 
nunciation of the fact, can make it valid So with the body 
claiming to be the Legislature of a State. If the I.e^islaiurc 
of the State, according to the provisions of its Constitution, 
the control-ersey is at an e> d; if not the Legislature of the 
State, no acts of theirs in their assumed chararUr, and iw 
consequences to follow from th-. invalidity of those nets, can 
give them the powers which they had not when ttie acts iiu n 
perform-d. or make them ichat they were nut, the Legislature 
of the Stale ” 

I Avill conclude what I have to say upon this 
branch of the case with the remark, that, if these 
views of Mr Wright be sound, “the controversy 
is at an end.” 

I did not notice in its order the objection inter¬ 
posed by the minority, that Governor Reeder is 





estopped, by liis own acts, from denying the legal 
and proper existence of the Kansas Legislature, 
and for the reason, that the answers to this objec¬ 
tion by the majority report, and by the learned 
gentleman from Maryland, seem to me to be tri¬ 
umphant and complete. It cannot have escaped 
the attention of the House, that the gentleman 
from Georgia, while he regards the Governor of 
Kansas, when he acts as a canvasser of votes 
and returns, as but a ministerial officer, and there¬ 
fore bound to give certificates of election to such 
persons as appear bp (he returns to be elected, the 
final and ultimate right to decide being in the Leg¬ 
islature, holds and stoutly maintains that Govern¬ 
or Reeder is concluded by operation of the doc¬ 
trine of estoppels—that he is estopped because he 
did something which, as a ministerial officer, he 
could not help doing. On the other hand, the 
gentleman from Maryland contends that the Gov¬ 
ernor, in canvassing the returns and issuing cer¬ 
tificates of election, was invested with more than 
ministerial powers, and that his decision was final 
and conclusive, and cannot be reconsidered. Still, 
he scouts, as well he may, and not inconsist¬ 
ently, this whole business of estoppels, in connec¬ 
tion with political questions. 

The gentleman argued with considerable force, 
from the language of the Kansas-Nebraska act, 
that the Governor was the final and only judge 
of tlie elections of members of the first Legisla¬ 
ture of the Territory of Kansas. The language 
of the act is as follows : 

•• I'iie per.sotis iJie liif^hesl number of legal votes 

ill each ol'said Council cU tricis, for member.^ of the Coun¬ 
cil. .^liill be declared by the Governor lo be duly elected 
to tiie touneil; and ili " persou' liaving ihe highest ninn- 
ber of 1 -sr il vo es !or the Hou'C of itepreseniaiives sha 1 
be d. clared oy the (J-ovenior to be duly elected members 
of s;iid M>')U e: Vroi'uled, That in cu'C two or more p>‘r- 
.-ons voted fo'- shall have an ec) lal number of votes, and 
in case a vaeaney shall otherwise occur in either iiraiudi 
of tile J..egi.sl,uiVC Assembly, the Governor shall order a 
f ew election; and the persons thus elected to the liCgis 
hi'ive Assembly siiall meet at such place, and on .sucli 
day, as liie Governor shall jppomt.'' 

This act is the Constitution of the Territory, 
and in it no power is expressly delegated to the 
first Legislature to judge of the elections, returns, 
&c., of its members. And if it be the true inter¬ 
pretation of the law, that it was the design of 
Congress that the machinery, for organizing the 
Territory should be put in motion by those mem¬ 
bers only who should obtain the certificates of 
the Governor, what will be the result? It seems 
to me to follow irresistibly, that those members, 
aild those only, who were declared to be duly elected 
by the Governor, could act in the Legislature, 
and that the acts of a body differently constituted 
cannot be the acts of the Legislature contemplated 
by the organic law of the Territory. Seven mem¬ 
bers who received certificates from the Governor 
were rejected by the House of Representatives, 
and seven who had nqt received certificates were 
admitted. Could this be the Legislature which 
was to consist of twenty-six members, “ declared 
to be duly elected” by the Governor? Here were 
but nineteen members with certificates, a minority 
of whom, with the members illegally admitted, 
would be a majority of the whole body, and could 
pass bills in opposition to the will of the majority I 


of those wlio had been legally returned. If the 
nineteen duly elected could not admit others to 
their number, as they could not if the Governor 
was the sole judge of elections, and yet be a Leg¬ 
islative body capable of trarisacting business, the 
organic law would be virtually repealed, and a 
quorum for doing business would be reduced from 
fourteen to ten, which would, clearly, be a very 
different body from that provided for by the law 
of Congress. The case is as if a board of com¬ 
missioners, consisting of three members, who, by 
the law establishing it, were to be appointed by 
the President, upon assembling to enter upon the 
discharge of their functions, should proceed to 
remove one of their number, and appoint another 
in his place. In such case, it may be presumed 
no one would contend that the action of the board 
could be of any force or validity. 

Mr. Speaker, a few words by way of review 
and “ improvement,” and I will bring these re¬ 
marks to a close. The minority demur to the 
memorial of Governor Reeder, and to the report 
of the majority, but in so doing admit, in effect, 
the general and substantial correctness of their 
statements. They do not pretend to say that 
thousands of Missourians .did not go over to 
Kansas on the 30th of Marcji, and vote for mem¬ 
bers of the Legislature, and prevent citizens of 
the Territory from voting. And, sir, if the ma¬ 
jority believed that this great question of public 
and universal concern, in whose issues are folded 
and contained, it may be, the future of the Re¬ 
public, could properly and fittingly be tried and 
decided upon the technical pleadings of the courts, 
upon estoppels and demurrers, they would say, 

Gentlemen, upon your own admissions, and by 
your own rules of construction, as applicable 
thereto, you have confessed the facts. By your 
general jjro/omu denial, with no specifications 
in detail—by your allegation that the complaints 
and charges, if true, amount to nothing, and this 
House has no jurisdiction—you have admitted, 
for the purposes of this trial, t.he truth of the 
averments in the memorial of Governor Reeder; 
and upon the rule« recognised in every court of 
law, the case is to be decided upon such admis¬ 
sions.” 

But, sir, this cause is not to be, ought not to 
be, so decided. The House. ought to know, the 
country desires to know, and should be informed, 
what the actual facts are. A judgment upon 
estoppels and demurrers will not be satisfactory 
to the House or the people; for it would leave, 
after all, the vital question of fact, and the ques¬ 
tion of the rights of the people of Kansas and of 
the parties here, open to dispute and controversy. 
What is wanted and demanded, is an impartial 
hearing, and an honest, intelligent judgment upon 
the very facts. Are gentlemen afraid of the facts? 
Will they suppress the truth ? What will be the 
inevitable judgment of the country, if they do? 
They only fear the truth, “ whom the truth would 
indict.” 

Sir, the doctrine of the minority, that this House 
has no authority to inquire whether, in point of 
fact, there was a legal Legislature in Kansas, and 
which goes to the extent that even if thousands 
of armed men did march from Missouri, their 




8 


place of residence, to Kansas, and tliere, by threats 
and force, take possession of the polls in every 
election district, and disregarding and trampling 
upon the laws and rules of election prescribed 
by the rightful authority, keeping citizens from 
voting, did themselves elect every officer; and 
thus impose upon the people of Kansas a Legis¬ 
lature—to call it such—against their wishes, in 
contempt of their laws, and in flagrant violation 
of their dearest rights, still there is no remedy ; 
that the House, in a case where its own rights 
and duties are directly concerned, and where, 
from the nature of the subject, it has full and 
plenary power to investigate and judge, must 
regard and hold such Legislature to be legal and 
rightful, and its pretended enactments as absolute¬ 
ly binding upon all parties, and protected from 
every inquiry, is a startling and monstrous doc¬ 
trine. No doctrine more dangerous or alarming, 
none more false and treacherous to liberty and 
to law, has ever been ventured in any Govern¬ 
ment, even the most tyrannical and despotic, of 
which histoiy has kept the record. I say more 
treacherous to law —to law— 

The State’s collected will. 

O'er thrones and globes elate ; 

Crowning good, repressing ill— 

^ not the will of one people over another; not, sir, 
the raw and unbridled will of Missouri mobs, in 
regard to the affairs of Kansas, pronounced in 
edicts such as have been read upon this floor, 
“ crowning ” the indescribable. evil of Slavery, 
and “repressing” the priceless good of Liberty. 

Gentlemen upon the other side of the question 
have spoken eloquently in behalfof law and order. - 
The simplicity and apparent sincerity with which 
they have insisted that law and order were to be 
respected in this case, by upholding a pretended 
Legislature in Kansas—admitted to be elected in 
good part by*non-residents; elected, as is charg¬ 
ed—and this is the question in issue—in contempt 
of all law, order, and decency, by fraud, force, 
and unheard-of outrages ; and by submitting, un¬ 
complainingly, to the acts of such a body, sitting 
in fraud of the rights of the people, was indeed 
admirable; or the irony of their remarks, if they 
were so intended, was more admirable still. The 
law must be kept by protecting law-breakers, 
and sustaining their doings in open violation of 
all law! Order must be observed, by yielding 
an unquestioning obedience to acknowledged 
mobs! Sir, we stand for law; this House, I 
trust, will stand for law and by law, and ascer¬ 
tain what the law is, in so far as it is itself con¬ 
cerned, and bound to know and act upon it. It 
should inquire and investigate to this end, and be 
careful that the law, rather than the resolutions 
of marauders, shall control its decisions. 

In no State or Territory upon any question 
where Slavery is not concerned, would such prin¬ 
ciples and doctrines as we have heard in this de¬ 
bate be avowed. Suppose that an invasion like 
the one alleged to have been made upon Kansas— 
and I have argued this case, as I had a right to 
do, as if all could’be proved wdiich is charg¬ 
ed—had been made upon Minnesota from Canada, 
and that under similar circumstances of frand and 


force a Legislature had been imposed upon that 
Territory; and then that under its pretended laws 
a Delegate elected by Canadians had been sent 
here—where is the man who would consent that 
Canada should be permitted in this way to be 
represented in this House? Oh ! sir, nothing but 
the system of Slavery—its necessities for strange 
and unfounded assumptions and demands—could 
suggest or permit such opinions and claims as 
have been set up here. They must not be toler¬ 
ated for a moment. Does any man imagine that 
those to whom they are addressed do not per¬ 
ceive how utterly unsound and groundless they 
are? Should they submit to them, they would 
acknowledge their unfaithfulness or incapacity, 
and justly become the scorn or pity of man¬ 
kind. 

Mr. Speaker, for the sake of Slavery, solemn 
compacts of long standing, deliberately entered 
into, and with mutual considerations, have been 
destroyed; pledges of faith and honor have been 
cast like worthless weeds away; the great writ 
of right, sacred for centuries, wherever the com-, 
mon law has been known, to the protection of 
mankind—the habeas corpus —has been struck 
down; the trial by jury, the palladium of civil 
right and personal security, born of the conflicts 
of liberty with despotism, and baptized in the 
blood of men struggling to be free, consecrated 
in our hearts as the ancient and indefeasible her¬ 
itage of the people, guarded by the Constitution, 
stands against all assaults except those of Slavery ; 
and, as if these things were not enough, we are 
now told that the instruments of this sectional 
interest, its gangs and invading armies, may enter 
and seize upon our infant Territories, our own 
Territories, under the immediate and especial pro¬ 
tection of the General Government—subjugate 
the people rightfully residing there, make laws 
and elect Delegates for them; and this House, in 
its unrestricted power to judge of the elections of 
its members, has no authority to inquire into their 
proceedings, or to resist the admission of such 
Delegates upon this floor. 

Slavery, in its claims and demands of to-day, 
is so much greater and better than anything else, 
nay, than all things else, that to protect and 
strengthen it, is held to justify the destruction of 
whatever stands in its way. The rules of the 
House are broken down by unscrupulous major¬ 
ities, and less than a quorum of members per¬ 
mitted to report bills from the Committee of the 
Whole to the House at its call. Laws are set 
aside, and compromises violated for its sake, and 
nothing is held sacred against its assaults. The 
great idea of the Declaration of Independence, 
and which has given its’author a name that 
“ Through the ages, 
laving in historic pasres, 

Brighter grows and gleams immortal,” 

is pronounced in the Senate of the United States 
a “self-evident lie.” All memories and hopes, 
all possessions and rights—the Constitution, the 
Union, the living Gospel of “peace on earth and 
goodwill to men,” are but flax and stubble, when 
exposed, to the consuming flame of this insatiate 
and inexorable system. 




BUEfiL & BLANCHARD, PRINTERS. 





